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Hawaiian pilot’s
Web site case
ordered to trial

He claims the airline broke
privacy and collective
bargaining laws by reading
the private postings

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By Jean Christensen
Associated Press

A federal appeals court panel has ordered a trial in a lawsuit filed by a Hawaiian Airlines pilot who says company officials illegally entered a secure Internet site where he criticized the airline and his union.

Robert Konop accused airline officials of violating the Wiretap Act and other federal laws in 1995 by reading the Web site that was intended only for certain pilots who were required to log in with a user name and password.

The Web site criticized proposed wage concessions that were supported by the Air Line Pilots Association, and urged pilots to consider getting new union representatives.

Judge J. Spencer Letts of the U.S. District Court for the Central District of California ruled from the bench in the late 1990s in favor of the airline.

But yesterday, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled the lower court should have allowed a trial on Konop's claims that airline officials broke privacy and collective bargaining laws by reading the site and by alerting union officials to it.

An employment law expert said the case puts a high-tech twist on an old workplace concern.

"Employers have always had concerns about employees who criticize them, whether it's complaints to a fellow worker on the next bench at the factory or it's two guys in a bar," said Stephen Sugarman, a University of California at Berkeley law professor.

The question in Konop's case is whether the same rules that prohibit the recording of off-the-clock communications between employees also apply to postings on Web sites not intended for the general public.

Konop, a DC-10 captain who lives in Playa del Rey, Calif., claimed that in December 1995 a now-retired Hawaiian Airlines vice president, James Davis, asked a pilot who was eligible to view the site for permission to use the pilot's name to gain access to it.

Davis claimed he was concerned about false allegations that he believed Konop was making on the site, the appeals court said.

According to the lawsuit, the same day Davis first logged on, Konop heard from union chairman Reno Morella, who reported that then-Hawaiian president Bruce Nobles had contacted him and was upset by accusations posted on the Web site.

Nobles and Davis could not be reached for comment. Hawaiian spokesman Keoni Wagner said the airline could not comment without having read the decision.

Konop's lawsuit accused airline officials of violating the Wiretap Act and the Stored Communications Act by reading the private information under false pretenses.

The lawsuit also claimed that in contacting the union about the Web site, the Honolulu-based airline violated the Railway Labor Act, which bars carriers from interfering with employees' selection of union representation.

Hawaiian also violated the labor law by threatening to file a defamation lawsuit against Konop over statements in his Web site, the lawsuit said.

The lower court dismissed those claims, citing a lack of evidence on some points and saying it lacked jurisdiction over a collective bargaining matter that should have instead gone to arbitration.

The 9th Circuit panel said a trial was warranted on the claims. But it upheld a lower court post-trial bench ruling against Konop's claim that the airline put him on a medical suspension in retaliation for his Web activities.

The appeals court wrestled with whether the Wiretap Act applies not only to messages that are intercepted as they are being transmitted, but also to messages that are stored and later retrieved.

Noting prohibitions on intercepting voice mail messages, the judges said it would be "senseless to hold that Konop's messages to his fellow pilots would have been protected from interception had he recorded them and delivered them through a secure voice bulletin board accessible by telephone, but not when he set them down in electronic text and delivered them through a secure web server accessible by personal computer."

The decision noted that the Wiretap Act allows any person to read Web sites that are intended for and readily accessible to the general public, but said Konop's site did not fit those criteria.

The ruling shows how new legal questions can arise when technology gives employees the potential to reach vast numbers of their colleagues, Sugarman said.

"In a way, what the Internet does, it allows employees to have a little bit of some of the benefits that are now in the hands of employers," he said.